in COGSA are also not of force in this context. Accordingly, the instant seaworthiness claim must fail.
b. Negligence Claim
Plaintiff also seeks recovery on a theory of negligence. But, notably, plaintiff seeks damages for purely economic loss. Specifically, plaintiff seeks damages for certain repairs and for lost income resulting from "downtime" allegedly caused by its receipt of contaminated fuel. The issue faced by this court is whether a negligence claim may be stated in admiralty where the damages sought are solely for economic loss. This court concludes that it may not.
Recent developments in tort law suggest a trend to preclude the maintenance of a negligence action to recover purely economic loss. See e.g., Pierce Associates, Inc. v. Nemours Foundation, 865 F.2d 530, 540 (5th Cir.), cert. denied, 492 U.S. 907, 109 S. Ct. 3218, 106 L. Ed. 2d 568 (1989) (citing cases). In East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 876, 106 S. Ct. 2295, 2305, 90 L. Ed. 2d 865 (1986), the Supreme Court determined that "whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury is economic loss." The Court reached this conclusion after examining traditional tort principles, with emphasis on the differing nature of contract and tort remedies. The Court did not reach the issue of whether a tort cause of action can ever be stated in admiralty when the only damages sought are economic. Id. at 871 n.6, 106 S. Ct. at 2302 n.6.
Since East River Steamship, other courts have extended the rule that where the injury is solely economic, a negligence action should not be maintainable. In Key Intern. Mfg., Inc. v. Morse/Diesel, Inc., 142 A.D.2d 448, 536 N.Y.S.2d 792 (1988), the Appellate Division of the New York Supreme Court barred a tort action alleging economic damages against an architect and an engineering firm. Essentially, the court determined that there was no distinction between a supplier of goods and a supplier of services. Id.
Likewise, in Pierce Associates, Inc. v. Nemours Foundation, 865 F.2d 530 (5th Cir. 1989), the Fifth Circuit ruled that a cause of action in negligence is not tenable in the construction context where the only damages sought are for pecuniary loss. Id. at 539-40. And, in the year prior to the supreme Court's decision in East River, the First Circuit reconsidered the rationale of the "the leading 'pure financial injury'" case of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S. Ct. 134, 72 L. Ed. 290 (1927) (Holmes, J.). See Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50, 52 (1st Cir. 1985). In so doing, the First Circuit determined that no tort action could be maintained in admiralty where the only injuries suffered due to the alleged negligence of the defendant were financial in nature. Id.
In this case, plaintiff seeks recovery for the lost business opportunities that it suffered because its ships were out of commission for the period in which it awaited replacement fuel. Like the plaintiff in East River, ADC seeks to place itself in the position it would have been in if the oil had not been contaminated. Under such circumstances, this court determines that plaintiffs remedy properly lies in contract not in tort. See, East River, 106 S. Ct. at 2303.
The nature of this action suggests that only foreseeable damages should be recoverable. Where parties are in a commercial setting and where they negotiate as to how consequential damages will be allocated, as ADC had the opportunity to do when it negotiated with Plaza, one party should not be able to circumvent an agreement by claiming a tort remedy for what amounts to poor business judgment.
In sum, the court must dismiss plaintiff's negligence claim as against each defendant because a purchaser of goods in a commercial transaction may not state a claim in negligence where the jurisdiction is in admiralty and the only damages sought are for economic losses.
Based on the foregoing, the court vacates its March 16, 1992 ruling on defendants Plaza and KMRC's Rule 56 motions with respect to the claims of negligence and unseaworthiness claims, but reinstates summary judgment in their favor, for the reasons stated herein, on such claims. In addition, the court grants summary judgment in favor Eklof.
Sterling Johnson, Jr.
UNITED STATES DISTRICT COURT
Dated: Brooklyn, New York
January 19, 1993